Philadelphia Criminal Defense Blog

Zak Goldstein 7/6/23 Zak Goldstein 7/6/23

PA Supreme Court: Parole Agents May Add Conditions of Supervision, Probation Officers May Not

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Koger, holding that the statutes governing state parole differ from those governing probation and allow parole agents to add conditions of supervision that were not included as part of the original sentencing order. This means that in some ways, probation provides more protections than parole. A probationer may not be convicted of violating probation conditions which were not ordered by the sentencing judge on the record at the time of sentencing, but a parolee may be found in violation of parole for violating conditions which were later imposed by the supervising parole agent.

The Facts of Koger

The defendant pleaded guilty to possession of child pornography and criminal use of a communications facility. The charges stemmed from an incident in which his daughter found contraband images on his cell phone. He pleaded guilty in state court and received a sentence of 8 - 23 months’ incarceration followed by three years’ probation. The court also ordered him to have no contact with any of the victims or persons displayed in the images, to submit to a drug and alcohol evaluation, to complete any recommended treatment, perform 100 hours of community service, and complete sexual offender counseling.

The court did not advise the defendant of the general conditions of probation or parole at the time of sentencing. Instead, a probation officer explained the general conditions of Washington County, PA’s probation and parole immediately following the sentencing hearing. None of those conditions were put on the record or placed in the sentencing order.

As the defendant had already served the minimum sentence, the court immediately paroled him. A few weeks later, the defendant violated his parole by possessing pornographic images. The trial court revoked his parole and sentenced him to his back time with work release for the parole violation. It resentenced him to another three years’ probation to run consecutively on the CUCF charge.

Following his release, the Commonwealth again charged him with violating his probation and/or parole. This time, the Commonwealth alleged that he violated some of the conditions of probation and parole which were not put on the record at the time of sentencing but were instead explained by the probation officer following sentencing. For example, the Commonwealth charged him with failing to report and consent to searches, violating criminal laws, committing assaultive, threatening, or harassing behavior, and failing to avoid unlawful and disreputable places.

Ultimately, the alleged violations stemmed from an incident in which the probation officers conducted a home visit and asked to search the defendant’s home. He refused to let them search the phone, they had to use force to detain him, and when they searched the phone, they found explicit chats between the defendant and a user who identified themselves as a 15-year-old female. They also found more illegal pornography. Finally, the defendant also threatened the probation officer as the officer dropped him off at the jail.

The trial court found that the defendant violated his parole and probation by committing technical violations. It revoked both the probation and parole and sentenced him to his back time for the parole violation and 1 - 3 years’ incarceration for the probation violation.

The defendant appealed, challenging both the legality of the sentence and the sufficiency of the evidence supporting the revocation of probation and parole. The Superior Court remanded, finding that the record did not contain sufficient evidence as to whether the conditions of probation and parole were made part of the sentencing order and proceeding. The trial court issued a supplemental opinion conceding that the conditions were not part of the sentencing proceedings. The Superior Court therefore reversed and remanded, holding that the trial court could not find the defendant in violation of probation and/or parole conditions which were not imposed at the time of sentencing. The Commonwealth appealed to the Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Ruling

The Supreme Court previously ruled in Commonwealth v. Foster that conditions of probation must be made part of the record at sentencing or a defendant cannot be charged with violating them. The issue in this case, however, was whether the same rules apply to a potential parole violation or whether parole agents/officers may impose conditions after sentencing. The Supreme Court agreed with the Commonwealth, finding that parole is different from probation and parole agents may add their own conditions even where the trial court has not specifically included those conditions in the sentencing order or put them on the record.

When it comes to probation, the statute directs that the court shall attach reasonable conditions . . . as it deems necessary to assist the defendant in leading a law-abiding life. A sentencing court may impose somewhat general conditions and then leave it to the probation officers to provide more specifics, but the basic conditions must be imposed by the sentencing court.

The statute, however, does not mention parole. Instead, the only relevant statute directs that when imposing a county sentence, the sentencing court shall place the inmate in the charge of and under the supervision of a designated probation officer. Therefore, the probation officer may decide the conditions of supervision during county parole.

State parole is also different as the Prisons and Parole Code authorizes the Parole Board to make general rules for the conduct of parolees and establish special conditions for supervision. The parole statute specifically authorizes the board to establish the conditions of supervision. Thus, the statutes require the sentencing judge to decide the conditions for probation, but it allows much more discretion to a state parole agent or county parole officer.

Therefore, the trial court properly found the defendant in violation of his county parole even though the conditions were imposed by a probation officer rather than the court. The probation violation was illegal, however, because the conditions for probation were not decided by the judge. This results in significant differences between probation and parole. For parole, the parole agent or officer may decide the conditions of supervision. But for probation, any conditions must be placed on the record at the time of sentencing.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/22/23 Zak Goldstein 6/22/23

PA Supreme Court: Prosecutor’s Reference to Defendant’s Post-Arrest Silence Requires New Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rivera, holding that even a brief mention of a defendant’s post-arrest silence by the prosecution will almost always require a new trial. Both the state and federal constitutions give an individual the right to remain silent and not speak with the police. This case recognizes that such a right would be meaningless if the government could then argue at trial that the defendant is guilty because they refused to make a statement. It is important to note, however, that courts are much more likely to reverse a conviction where the government tries to take advantage of post-arrest silence than silence that occurred prior to an arrest or the giving of Miranda warnings.

The Facts of Rivera

In Rivera, the defendant was accused of sexually abusing a number of minors. The Pennsylvania State Police investigated the case, and they eventually filed rape charges against him. The police went to his house to arrest him, advised him of the charges, and read him his Miranda warnings. They then formally placed him under arrest. The defendant did not say anything at that time; he did not incriminate himself, and he also did not deny the allegations. Instead, he remained silent. He had an absolute right to do so under the Pennsylvania and United States Constitutions.

The defendant proceeded by way of jury trial. At trial, his defense attorney challenged the credibility of the witnesses. The defense centered around arguing that the complainants were not telling the truth and that they had made up the allegations. During the cross-examination, the defense attorney asked the investigating state trooper a number of questions about the investigation in order to show that the trooper had not done much of an actual investigation. One of those questions was whether the trooper had spoken with the defendant, and the trooper said that he had tried to but was unsuccessful. On re-direct, the prosecutor asked the trooper about the Miranda warnings. Specifically, the following exchange occurred:

Q. [Commonwealth Attorney]: I’d like to direct your attention to June 26, 2018, at about 1400 hours, did you . . . go to the home of [Rivera]?
A. [Trooper Higdon]: Yes.
Q. And was he arrested based on the arrest warrant?
A. I had an arrest warrant in hand, correct.
Q. At approximately 1430 hours, did you read [Rivera] his Miranda [w]arnings?
A. Yes.
Q. So what, what are the Miranda [w]arnings?
A. Miranda [w]arnings are, I’ll say in easy terms of their right to remain silent.
Q. Okay. After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?
A. No.
Q. He never denied doing anything to –
Defense Counsel: Objection to that. A person doesn’t have to deny.
The Court: You’re correct, I think he’s just asking if he did. You may answer.
A. He did not deny.
Q. He never said[,] I didn’t do this?
A. No.
Q. What did he say?
A. Nothing, he said he wished not to talk.
Q. No more questions.

As is reflected in the exchange, the defense attorney objected to this line of questioning, but the trial court overruled the objection. The trial court did not provide a cautionary instruction to the jury. The jury convicted on many of the charges, and the defendant appealed.

The Superior Court affirmed. It held that the prosecutor should not have asked the questions about the defendant’s response to receiving his Miranda warnings, but it found that the error amounted to harmless error. It also found that the prosecutor’s questioning was a fair response to the defense’s opening the door on the issue by asking if the trooper had spoken with the defendant. The defendant petitioned the Pennsylvania Supreme Court for review, and the Supreme Court granted allocatur.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reversed the conviction. The Court emphasized that the prosecution simply may not ask questions about a defendant’s decision to remain silent after being arrested and receiving Miranda warnings. The issue is more complicated when a defendant has not yet been arrested - in that case, the courts may be more forgiving should a police witness testify that a defendant did not give a statement while describing the steps that the officer took to investigate the allegations.

Post-arrest, however, there is an absolute right to remain silent, and the prosecution may not try to take advantage of silence in order to suggest that a defendant is guilty. Indeed, the Court noted that “referencing a defendant’s post-arrest silence may imperil an entire case.” Even though the evidence in this case appeared to be strong, the Court found that the error was not harmless. First, it found that the reference to silence was not de minimis - the prosecutor had asked four questions about it. Second, the evidence was not merely cumulative of other evidence in the case. Third, the evidence was not so overwhelming that the defendant could not have been prejudiced. Accordingly, the Court granted Rivera a new trial.

In general, the prosecution may not use a defendant’s silence against them at trial. Even references to pre-arrest silence may be inadmissible and lead to reversal on appeal. But this case makes it very clear that references to post-arrest silence are particularly problematic and that even just a few questions about it may lead to a new trial. Prejudice is essentially presumed when the prosecutor attempts to use a defendant’s post-arrest decision to remain silence against them.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

Read the case

Zak Goldstein 6/21/23 Zak Goldstein 6/21/23

Motion to Suppress Firearm Granted Due to Defective Search Warrant

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won the suppression of a firearm in the Philadelphia Municipal Court. In the case of Commonwealth v. J.K., the client was charged with possessing a firearm as a prohibited person for allegedly refusing to relinquish two firearms after Family Court issued a final protection from abuse order against him. Fortunately, J.K. retained Attorney Goldstein, and Attorney Goldstein obtained suppression of the gun that police recovered when they searched J.K.’s apartment.

In this case, J.K.’s relative obtained a protection from abuse order against him. The final order contained a condition which required J.K. to surrender any firearms. After nearly a year went by, the Philadelphia Police conducted a background check on J.K. and concluded that he had not surrendered any firearms to the Sheriff’s Department as directed by the order. According to police records, J.K. had allegedly purchased two firearms legally about four or five years ago. A detective called J.K., and he told them that he did not have any firearms to surrender. Similarly, sheriffs deputies went to J.K.’s apartment and left notices on his door that he was required to surrender any firearms according to the terms of the PFA.

J.K. never surrendered any firearms, leading police to then obtain a search warrant for the apartment. When they executed the search warrant, they found one gun in the apartment. They arrested J.K., and the District Attorney’s Office charged him with possessing a firearm as a prohibited person in violation of 18 Pa.C.S. § 6105 (VUFA § 6105). Under the statute, it is illegal for a person to possess a firearm while they have an active PFA order against them.

J.K. retained Attorney Goldstein, and Attorney Goldstein litigated a motion to suppress on his behalf. Attorney Goldstein moved that the Municipal Court judge suppress the firearm because the warrant that the police relied upon did not actually contain probable cause. Specifically, the warrant provided only that J.K. had purchased firearms about four or five years prior to the date on which the Family Court issued the PFA and that he had not relinquished those firearms to the sheriff. The problem with the warrant, however, was that the police had no evidence that J.K. still had the firearm.

Does Pennsylvania Maintain a Registry of Firearms?

The simple answer to this question is no. Pennsylvania does not maintain a registry of firearm possession. Pennsylvania and federal law require a person who wishes to purchase a firearm from a dealer to undergo a background check and fill out certain paperwork at the time of the sale. The dealers generally keep that paperwork, and they provide copies of that paperwork to the police or federal agents when someone fails the background check so that the police can investigate whether the person attempted to purchase the gun illegally. This paperwork, however, does not go into any kind of central registry that can tell the police or other law enforcement where a particular gun is at any time. Additionally, there are many firearms transfers which do not require the completion of any paperwork at all. For example, a person may give a firearm to a parent, spouse, child, grandparent, or grandchild without completing any of the background check paperwork. Additionally, if someone left the state and sold the firearm in another state, the Pennsylvania State Police would not have any information on that transaction. Finally, if a gun were lost, stolen, or destroyed, the local police also may not have any information on the whereabouts of the gun.

So, although it is common for people to believe that a gun is “registered” to them after they have purchased it from a gun store, the reality is that Pennsylvania does not maintain a registry of firearms. Instead, the police tried to find out if J.K. still had a gun by checking various databases for whether or not the gun had ever been reported stolen. They did not know whether J.K. had gifted it to a close relative as allowed by law, had it stolen, sold the gun legally, or lost or destroyed it. When the police called, J.K. calmly told them that he did not have any firearms to surrender, and the purchase of the firearms had been four or five years earlier. The police, however, had obtained the search warrant based on this mistaken idea that guns are registered and that if J.K. had legally disposed of or transferred the guns, the police would somehow know about it. This idea, however, is not correct. Accordingly, Attorney Goldstein successfully argued that just because J.K. had a gun four or five years earlier did not mean he would still have a gun that he would need to surrender at the time that the PFA order was issued by the Family Court judge. The Municipal Court agreed, found that the warrant did not contain probable cause, and granted the motion to suppress.

It is also important to note that Pennsylvania does not have a good faith requirement for invalid search warrants. In the federal system, prosecutors often may move forward even if the search warrant was defective in some way or even if it had already been executed. In the state court system, evidence obtained in reliance on a defective warrant must be suppressed. Once evidence has been suppressed, it cannot be used in court, and prosecutors will generally be unable to move forward with the case.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 6/14/23 Zak Goldstein 6/14/23

PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.

The Facts of Rosario

In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.

Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The Supreme Court’s Ruling

The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).

Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.

There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.